By V. Anbalagan | Free Malaysia Today
A former college student accused of stabbing a gangster during a birthday party at a pub four years ago today escaped the gallows after the Court of Appeal set aside his conviction by the trial court.
A three-member bench, chaired by Vazeer Alam Mydin Meera, said the identification of P. Dhivyaprabu was unsatisfactory.
“There was also serious misdirection by the trial judge on section 300(c) of the Penal Code and his assessment in support of his findings,” Vazeer said in allowing Dhivyaprabu’s appeal against sentence and conviction.
Vazeer, who sat with Ahmad Nasfy Yasin and Nordin Hassan, said the conviction was not safe and must be set aside.
Dhivyaprabu, now 25, was accused of stabbing Muhammad Jeffri Abu Bakar at Cube Pub at Publika, Sri Hartamas, in Kuala Lumpur, betweeen 4am and 4.30am on 28 January 2017.
Lead counsel Gooi Soon Seng today submitted that Dhivyaprabu went to the pub with 10 students, including three girls, to celebrate the birthday of one of his friends.
He said there was a commotion with another group just as the outlet was about to close.
“In the ensuing brawl, the deceased was stabbed with a three-inch knife,” he said.
Gooi said the judge should have acquitted his client without his defence being called as he had ruled that closed-circuit television (CCTV) camera footage obtained from the pub was inadmissible.
“However, my client’s identification was based on this CCTV footage. Yet, the judge relied on this footage during the defence stage,” he said.
He said no prosecution witness was asked to do a dock identification during the trial. The police officer who conducted the identification parade was also not called to testify.
Gooi said the alleged murder weapon did not have the fingerprints of his client and that it was found outside the pub.
“Someone else could have committed this crime. The prosecution’s evidence, when tested under cross-examination, was not credible,” he said.
He said Dhivyaprabu ran away to Johor but returned later as the victim was a notorious gangster in the San Peng locality and numerous police reports had been made against him.
Lawyer Amer Hamzah Arshad, who appeared with Gooi, said in an alternative submission that the judge had misdirected himself in also not considering whether the act could be culpable homicide not amounting to murder.
Deputy Public Prosecutors Samihah RhazalI and Muhammad Azmi Mahsud appeared for the prosecution.